After nearly three decades of reluctance to rule on prison overcrowding and its consequences — by hearing civil rights cases brought by prisoners, or ruling in their favor — a sea change may be in the offing in the federal courts, legal scholar Jonathan Simon believes.

Jonathan Simon

Simon directs Berkeley Law’s Center for the Study of Law and Society and is the author of two books — Governing Through Crime and Mass Incarceration on Trial — the latter of which explores the 2011 Supreme Court case Brown v. Plata, which found the California state prison system in violation of the “cruel and unusual punishment” provision of the Eighth Amendment.

“Courts need a conviction in their stomach that something is really off the rails morally,” he says in a Q&A with Slate staff writer Leon Neyfakh, on the possibility of a new look at mass incarceration in the appellate courts. Brown v. Plata may be helping to move the dial, he believes.

Many think “I’m way too optimistic about it,” Simon adds. Yet “from the early ’60s to the late ’80s — after centuries of saying that prisons were basically off the table for court intervention — suddenly the federal courts …. began to look at the really wretched state of prisons … in that era.”